Thousands of Scottish Couples Risking Costly Mistake

The Family Law (Scotland) Act came into force in 2006 – giving couples who cohabit rights to claim against their partner in the event of a split and also rights to claim against their partner’s estate if their partner died. Previous to this law coming in, cohabiting couples had very limited rights to make a financial claim against the other person if they separated. If their partner died and did not leave a will then they had no right at all to claim on the partner’s estate.

However, Gibson Kerr has stressed that despite the law change, this does not mean that cohabiting couples now have equal rights with spouses or civil partners. Fiona Rasmusen, partner at Gibson Kerr, said: “Even though this change in law occurred three years ago, there is still an incredible amount of misunderstanding around what people who cohabit are legally entitled to, compared to those who are married or in a civil partnership. “There are many people who work under the impression that after two years you are a legal couple and entitled to all the same rights as a married couple – but that is not the case at all.

“If you cohabit with somebody and then split up, anything that you acquire during the time that you are together – apart from money, cars, pets, gifts or inheritances – is assumed to belong to both partners equally. “This means that anything that is bought for the house like furniture or paintings should be shared equally in the event of a separation. Also, any money that is left over from household expenses is to be treated as belonging equally to each party and should be shared equally in the event of a couple splitting up. “However, this does not give cohabiting parties any right to a house, so the rights of cohabiting couples are much more limited than the rights of married couples.”

Fiona recommends that co-habiting couples need to seek expert advice and fully research their legal status and rights, in order to ensure they know exactly what claims they are entitled to make. She added: “The new law does give cohabiting couples the right to claim against each other for a sum of money if they can show that they have been economically disadvantaged by the relationship. There haven’t yet been many cases that have made it to court, however, so it is difficult to know at the moment how much money you would be likely to be awarded in these kinds of cases. “However, the main thing that people do need to know is that, if they want to make a claim under this act, they have to do so within a year. If you do not make the claim within 12 months of splitting up you lose the right to claim under the act – so you should see a family law solicitor straight away in the event of a relationship break-up to discuss whether you might have a valid claim.

“The new law also gives cohabiting partners the right to claim on their partner’s estate if they die. Even if your partner has not made a will, then you as the surviving partner can now make a claim on their estate. “However, this claim must be made within six months of the date of death. This is a very short time span and many people are not generally aware that, if the claim is not made within that time limit, then the right to claim will be lost. “If a couple do decide to start cohabiting the best thing to do is to consider entering into an agreement at the start to decide what would happen to all property in the event that they split up. Also, it is of course always good advice to make a will so that you know that in the event of your death your estate goes to the person you want it to go to.”